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Heuton v. Colvin

United States District Court, D. Arizona

August 9, 2016

Lynn Ann Heuton, Plaintiff,
v.
Carolyn W Colvin, Defendant.

          ORDER

          ERIC J. MARKVICH. UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Lynn Ann Heuton (“Heuton”) brought this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a final decision by the Commissioner of Social Security (“Commissioner”). Heuton raises five issues on appeal: 1) whether the Administrative Law Judge (“ALJ”) failed to properly consider evidence submitted post-hearing; 2) whether the ALJ gave improper weight to the treating physician’s opinion; 3) whether the ALJ improperly rejected the vocational evaluation report; 4) whether the ALJ failed to consider how Plaintiff’s impairments would affect her occupational base of unskilled, medium work; and 5) whether the ALJ improperly discounted Plaintiff’s credibility.[1](Doc. 14 at 12; Doc. 22 at 2).

         Before the Court are Heuton’s Opening Brief, Defendant’s Response, and Heuton’s Reply. (Docs. 14, 21, & 22). The United States Magistrate Judge has received the written consent of both parties and presides over this case pursuant to 28 U.S.C. § 636(c) and Rule 73, Federal Rules of Civil Procedure. The Court finds that the ALJ erred in weighing Dr. Gray’s treating physician opinion and Mr. Shapiro’s vocational evaluation opinion and in negatively assessing Heuton’s credibility. These errors impacted the ALJ’s RFC assessment and the hypotheticals posed to the VE. Consequently, these errors were not harmless because they ultimately impacted the Step Five nondisability finding, and the Court finds remand for further proceedings is appropriate.

         I. Procedural History

         Heuton filed an application for Disability Insurance Benefits (“DIB”) on August 29, 2011. (Administrative Record (“AR”) 160). Heuton alleged disability beginning May 14, 2011 (AR 160) based on back pain, headaches, anxiety, fatigue, depression, and GERD. (AR 64). Heuton’s application was denied upon initial review (AR 75, 99) and on reconsideration (AR 94, 104). A hearing was held on August 26, 2013 (AR 27), after which ALJ Lauren R. Mathon found, at Step Four, that Heuton was not disabled because she was able to perform her PRW as a resident aide (AR 19). Because Heuton argued that this work did not meet the criteria for substantial gainful activity, the ALJ also made an alternative finding at Step Five that Heuton was not disabled because she could perform other jobs existing in significant numbers in the national economy. (AR 20). On March 6, 2015 the Appeals Council denied Heuton’s request to review the ALJ’s decision. (AR 1).

         Heuton’s date last insured (“DLI”) for DIB purposes is March 31, 2015. (AR 11). Thus, in order to be eligible for benefits, Heuton must prove that she was disabled during the time period of her alleged onset date of May 14, 2011 and her DLI of March 31, 2015.

         II. Factual History

         Heuton was born on June 9, 1952, making her 58 at the alleged onset date of her disability. (AR 64). Heuton has a high school education. (AR 179). She has worked a number of different jobs including phone enrollment for HMOs, magazine stocker, housekeeper, janitor, and resident aide. (AR 321).

         A. Treating Physicians

         The medical records include a number of progress notes from Heuton’s care at the Southern Arizona VA beginning in 2004. Pertinent notes regarding Heuton’s mental health care at the VA include the following:

         April 6, 2004: Heuton was seen for an intake appointment and reported she was having trouble with being in a funk, just eating and sleeping and feeling stuck, and had not changed clothes in 3 days. (AR 607). She reported no anxiety or agitation but that she was quite sad and lacked motivation to get involved in the community. Nurse practitioner Lorna Cook assessed depression and prescribed Zoloft and referred Heuton for counseling. (AR 608; 456-57 [counseling consult request]). Heuton’s depression screening was positive. (AR 609).

         May 25, 2004: Cook observed that Heuton was “tearful though she laughs and cusses about most things she says, ” and assessed depression and grief. (AR 605). Cook prescribed Lexapro and sleeping pills.

         July 4, 2004: Heuton was referred for counseling with Wilma Johnson for depression, and stated she had no motivation or energy. (AR 603). Johnson assessed depressive disorder with prolonged bereavement. (AR 604).

         August 6, 2004: Heuton stated she wanted to return to counseling with the social worker. (AR 600; 455 [counseling consult request]). She was observed to be alert and oriented, and her mood disorder was improving. (AR 600-01).

         August 18, 2004: Cook noted Heuton had severe depression, was isolated, and did not pursue the widow’s group. (AR 598). She assessed depression exacerbation and prescribed Sertraline “to help stimulate and reduce withdrawn state” and indicated she would set up fee-based counseling. (AR 599; 454 [counseling consult request]).

         November 18, 2004: Heuton reported she was increasingly tearful as it got closer to the anniversary of her husband’s death. (AR 596). She reported buying a new horse and making friends at the corral and making plans with them, which Cook noted was “a significantly higher level of social involvement than in the past.” Id. Cook also noted Heuton had not been able to start counseling because she was not eligible for fee-based services. Id.; see also AR 451 [consult request inquiring whether there was a counselling space available for Heuton]. Cook assessed depression and increased Sertraline. (AR 597).

         March 16, 2005: Cook noted Sertraline was not helping Heuton’s mood and that she was having a lot of trouble sleeping and lacked motivation. (AR 590). Cook observed Heuton to be tearful and articulate, and recommended Heuton see a counselor for her depression. (AR 591; 449 [counselor consult request]). Cook also prescribed an antidepressant and sleep medications. Heuton tested positive on a depression screening. (AR 592).

         March 28, 2005: At an individual therapy appointment, Heuton reported to social worker George Lawson that she had been depressed since her husband died in 1999 but had no symptoms of depression prior to that, and had been in her house depressed for the past 3 weeks. (AR 589). Lawson observed Heuton to be tearful and assessed major depressive disorder, recurrent, and recommended her PCP consider an anti-depressant.

         April 25, 2005: Heuton reported she was doing a little riding but was sad and isolated for the most part. (AR 587). Lawson noted her attitude and insight was slightly improved, and assessed sustained grief reaction. Id.

         May 18, 2005: Lawson observed Heuton to be more positive and assessed major depressive disorder, partial remission. (AR 586).

         June 16, 2005: Cook noted Heuton was “brighter than any previous visit, ” medication change helped with less weeping, and counseling was helpful. (AR 584). Cook observed Heuton to be laughing, direct, and hopeful, and assessed good control of her depression. (AR 585).

         September 16, 2005: Cook observed that Heuton was calm and laughing and noted her depression was nicely controlled on medication and that she was using sleeping pills twice per week. (AR 582).

         December 16, 2005: Heuton reported her father died in September and she was coping well; resting adequately. (AR 578). Cook noted normal mood and affect. (AR 579).

         August 28, 2006: Heuton reported being significantly more depressed since she was not sleeping well, and tried doubling her antidepressant without relief. (AR 574). Cook observed her to be talkative with a low pitched voice and tearful, and assessed “depression exacerbation with grief overlay and poor sleep.” (AR 575). Cook recommended Heuton see a counselor and consider a support group because “isolation is real issue for her.” Id.

         October 4, 2006: Heuton reported sleeping better but still struggling with feeling of no motivation; overwhelming sadness. (AR 569). Cook observed her to be tearful and articulate, and assessed depression and prescribed Wellbutrin. (AR 570).

         November 15, 2006: Heuton reported feeling much better after taking Wellbutrin for 1 month and was sleeping well with her sleeping pills. (AR 564). Cook indicated Heuton was not eligible for a counselor. Heuton was observed to be laughing, bright, and talkative, and Cook assessed depression “much improved” and “expect this improvement to be sustained.” (AR 565).

         February 28, 2007: Increased agitation and blowing up more often; stopped Wellbutrin and crying on the couch again. (AR 560). Cook noted Heuton was “talking fast and abruptly but no physical restlessness, still usual laughter about her situation.” (AR 561). Wellbutrin and Citalopram prescribed for mood control.

         March 28, 2007: Doing much better on Citalopram. (AR 558). Counselling offered but Heuton felt it was not necessary. (AR 559).

         June 12, 2007: On depression screen, Heuton reported having little interest or pleasure in doing things more than half the days, and feeling down, depressed, or hopeless several days. (AR 556).

         August 14, 2007: Negative for PTSD screening. (AR 550).

         September 24, 2007: Mood control good. (AR 546).

         March 5, 2008: Mood control holding on Citalopram and Trazodone for sleep. (AR 538).

         July 22, 2008: Heuton called and requested letter documenting her PTSD, needed for a job. (AR 537).

         September 16, 2008: Does not do well off medications, tearful and cannot get motivated. (AR 527). Positive depression screen. (AR 528, 531).

         July 7, 2009: Major depressive disorder well controlled. (AR 495).

         February 3, 2010: Major depressive disorder well controlled mood and sleep. (AR 489).

         April 9, 2010: Heuton called and stated she needed a letter written stating that her horses are therapy for PTSD; requested medication change because antidepressant was making her sluggish and irritable. (AR 480).

         July 27, 2010: Not managing depression well; had anger outburst and lost her job; has lost motivation. (AR 476). Cook noted Heuton was tearful and assessed depression exacerbation and prescribed a mood stabilizer. (AR 477).

         September 1, 2010: Cook noted Heuton was not eligible for care from VA mental health department. (AR 474). Observed Heuton to be talkative with no tearfulness; assessed depression and noted Heuton had not tolerated Bupropion. (AR 475).

         September 27, 2010: Heuton called and requested consult with psychiatrist due to depression. (AR 472).

         October 23, 2010: Exacerbation of depression, more tearfulness and anger; did not improve with Bupropion and no significant impact with additional Lamotrigine; Trazodone beneficial for sleep. (AR 468).

         Additional medical information:

         A note from Concentra dated March 22, 2011 indicates that Heuton injured her back, neck, and shoulders at work on March 18, 2011. (AR 643). Findings on exam included: cervical spine reveals no swelling, deformity, abnormal curvature or other abnormalities; normal cervical ROM; palpation of cervical spine positive for tenderness; positive straight leg test produces back pain; lumbar ROM decreased mildly with pain; palpation positive for pain at L3, L4, and L5. (AR 644). The examiner assessed lumbar strain and shoulder strain and recommended therapy. Id.

         Heuton saw Dr. Gray on April 18, 2011 for a follow-up on her neck and low back pain. (AR 329). Dr. Gray noted she did not have pain at the appointment, but had intermittent low back pain at an 8/10. Findings on exam include neck supple, extremities unremarkable, positive straight leg raise on the right, right ankle jerk absent, pinprick diminished in both lower extremities, and equivocal soft/light touch test. (AR 330). Dr. Gray observed that Heuton could heel and toe walk without difficulty but “was positional at times with regard to pain and splinting.” Id. He assessed low back pain and back strain and referred Heuton for x-rays and a MRI of the lumbar spine. Id. Dr. Gray also recommended that Heuton was to remain off work “as there is no light duty for her and her job definitely entails significant lifting of 40 or 50 pounds at a time.” Id.

         Heuton had a MRI of the lumbar spine on May 5, 2011. (AR 350). The conclusion was diffuse degenerative changes throughout the lumbar spine, including mild to moderate compression deformities at T11 and mild compression deformities at T 10, T12, L1, and L2. There was also mild disc bulging at T11-T12, L1-L2, L2-L3, L3-L4, and L5-S1, and moderate bulging at T4-L5. There were mild hypertrophic degenerative facet joint changes at T3-L4, and moderate to marked changes at T4-L5 and L5-S1.

         On May 12, 2011 Heuton had nerve testing which showed a normal EMG of the lower extremities and normal nerve conduction velocities of the bilateral lower extremities. (AR 347). The impression was no evidence of radiculopathy or neuropathy, and no electrodiagnostic abnormalities. Id.

         Heuton saw Dr. Gray on May 27, 2011 and reported a headache at 8/10 related to pain in her neck. (AR 332). On exam, Dr. Gray noted she could heel and toe walk without difficulty and got on and off the table with some antalgia. Id. Dr. Gray noted that Heuton’s “EMG and nerve conduction velocities were normal in the lower extremities and the MRI revealed generalized degenerative changes with some bulging discs within the lumbar spine and compressive changes in the T11-T12 vertebra but there was no evidence of any herniation.” (AR 333). Dr. Gray referred Heuton for physical therapy (“PT”) for her low back strain and continuing pain. (AR 333, 657-58).

         A letter from Dr. Gray to Health Direct Inc. dated May 27, 2011 states:

There definitely was a causal relationship between the bending and lifting that [Heuton] did on the date in question and the injury that she sustained. Her low back pain is definitely related to her back injury and strain and there is no evidence of any new injury.
My current treatment protocol and plan is to have her undergo physical therapy 3 days a week for the next 4 weeks . . . We will also provide her with pain meds.

(AR 647).

         Heuton saw Cook on June 21, 2011 for a follow-up on mood disorder and back pain. (AR 462). Cook noted that Heuton had chronic depression and prolonged bereavement, and recently had 3 panic attacks. (AR 463). Heuton reported going on worker’s compensation in March after injuring her neck and back and stated she started PT and her neck was better. Id. Cook assessed chronic depression, moderate response to medication, and noted counselling was not available to Heuton through the VA. (AR 464). She also assessed low back pain and recommended Heuton continue PT, and prescribed medications for panic attacks and muscle spasms.

         Heuton saw Dr. Gray on July 18, 2011 and reported her back pain was significantly better but that she was concerned about neck pain and was also experiencing headaches. (AR 334). Dr. Gray noted she was under a lot of stress after being evacuated from her home due to a fire. Id. Dr. Gray stated that PT was exacerbating Heuton’s neck pain and advised that she discontinue PT and “just let time, love, and tenderness help to get things back into shape.” (AR 335).

         A PT discharge summary dated July 22, 2011 indicates that Heuton was being discharged for administrative reasons and did not complete her therapy program. (AR 323). A handwritten note, presumably from Dr. Gray, indicates that he advised Heuton to stop PT because she had increased neck pain. Id. The therapist noted that Heuton had sharp, dull, radiating back pain at an 5/10, and that her pain was made worse by bending, lifting, and sitting for more than 15 minutes. (AR 324). The therapist also noted that Heuton reported numbness and tingling in the right upper and lower extremity, that she takes 2-4 Vicodin daily for headaches and knee pain, and that she had limited trunk sidebending, pain with straight leg raise, and tender bilateral lumbar and thoracic paraspinals. Id.

         Heuton saw Dr. Sullivan on August 17, 2011 and reported depressive symptoms including loss of motivation, difficulty sleeping, decreased memory and concentration, poor appetite, and dysphoria beginning in the late 1990s. (AR 731). She also reported panic attacks when stressed, treated with Paxil. Dr. Sullivan assessed major depressive affective disorder recurrent episode severe degree without psychotic behavior and a GAF score of 60. He prescribed Effexor and Seroquel and discontinued Sertraline.

         Heuton saw Dr. Gray on August 29, 2011 and reported continuing significant low back pain and neck pain. (AR 337). Dr. Gray noted that her back pain was variable and tended to be a 7.5/10. Id. On exam, Dr. Gray noted that straight leg raises were positive to 40 degrees and talar subflexion was also positive, and that Heuton was angulating without evidence of antalgia. (AR 338). Dr. Gray stated that he was waiting on records so that he could continue Heuton’s work capacity evaluation and that he might send her to PT for an objective assessment of her work capacity. Id.

         Heuton saw Dr. Sullivan on September 5, 2011 and reported feeling worse and no energy, but sleeping well and no panic attacks. (AR 730).

         Heuton saw Dr. Gray on September 16, 2011 with concerns about continuing neck pain, headaches, and low back pain. (AR 340). Dr. Gray noted that this was all related to her workplace injury and that Heuton was unable to tolerate PT because it aggravated her headaches when they were working with her neck. Id. On exam, Dr. Gray noted that straight leg ...


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